Terms of Use

Welcome to www.underclub.co (the “Site”), a website operated by Underclub, Inc. (“Underclub”, “we”, “us”, or “our”). Underclub offers a subscription delivery service for undergarments unique to your taste and lifestyle (“Products”) that are handpicked by Underclub personal stylists from up-and-coming labels and brands and sent to your home, office, or any location you choose (collectively, the “Services”).

The following terms and conditions (the “Terms of Use”) form a binding agreement (the “Agreement”) between you and us, and govern your use of the Site, the Services, and any Subscriptions (defined below) that you place.

PLEASE READ THESE TERMS OF USE CAREFULLY.

BY ACCESSING THE SITE, ORDERING A SUBSCRIPTION, OR USING THE SERVICES YOU AGREE TO BE BOUND BY THESE TERMS OF USE. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS OF USE, YOU MAY NOT ACCESS OR USE THIS SITE OR ORDER A SUBSCRIPTION.

We may change, add, or delete portions of these Terms of Use at any time on a going-forward basis at our sole discretion. It is your responsibility to check these Terms of Use for changes prior to use of the Site or Services, and in any event your continued use of the Site following the posting of changes to these Terms of Use constitutes your acceptance of any changes. We will use reasonable efforts to notify you of any such material changes by posting notice of the changes on the Site, and/or, in our sole discretion, by any other means.

TYPES OF USERS

You may simply browse the Site as a visitor or you may create an account (“Account”) and register with us to become a client (“Client”). You must be a Client to order Subscriptions (defined below).

ACCOUNTS

To become a Client, you must provide your email address and select a password (“Account Information”), which you may not transfer to or share with any third parties. We will also ask you for additional information about what you do and don’t like in order to establish your style profile (“Style Profile”). In order for the Services to work best for you, please keep your Style Profile up to date. Please also keep your Account Information confidential. If someone accesses our Site or Services using your Account Information, we will rely on that Account Information and will assume that it is really you who is accessing the Site and Services. You are solely responsible for any and all use of your Account Information and all activities (including Subscriptions, defined below) that occur under or in connection with your Account. Without limiting any rights that we may otherwise have, we reserve the right to take any and all action we deem necessary to ensure the security of the Services and your Account, including without limitation terminating your Account, changing your password, or requesting additional information to authorize transactions on your Account. You agree to be responsible for any act or omission of any users that access the Services under your Account Information that, if undertaken by you, would be deemed a violation of these Terms of Use. You may not use anyone else's Account at any time, without the permission of the Account holder. Please notify us immediately if you become aware that your Account Information is being used without authorization. You agree not to register for more than one Account, register for an Account on behalf of an individual other than yourself without such individual’s authorization, or register for an Account on behalf of any group or entity. You must be at least 18 years old to be a Client. If we later discover or suspect that a person under 18 years old has requested a Subscription (defined below), we reserve the right to cancel that request.

3.Underclub Subscriptions AND RETURNS

Underclub Subscriptions. When you subscribe to receive a shipment, we will send you some Products chosen by Underclub (“Subscription”). You can choose to receive your Subscription on a pay-as-you-go plan on a monthly or bimonthly basis or on a prepaid plan for six (6) months or a year (“Subscription Plan”)

Scheduling. If you order any Subscription, you authorize us to charge you for the Subscription in accordance with these Terms of Use. You may change your Subscription Plan if you give us at least fourteen (14) days’ notice before it is due to ship by visiting your account page (“Account Page”) and adding a new Subscription Plan. If you wish to change the scheduled month for your Subscription Plan, you can do so by logging into your account at underclub.co or contact us at hello@underclub.co. These Terms of Use will govern any Subscription. We may refuse to ship to any address for any reason including because it is outside the geographic area that we serve (currently only the United States) or it is to an address that we determine has a history of fraudulent purchases.

Returns. All underwear sales are final. If you have an issue with your underwear order, you must contact Underclub support at hello@underclub.co to request further assistance. Assistance with underwear orders must be requested within fourteen (14) days of receipt and may be granted at the sole discretion of Underclub. If you want to return any non-underwear products, you must contact Underclub support at hello@underclub.co to request a return. Returns must be requested within fourteen (14) days of receipt and may be granted at the sole discretion of Underclub. Non-underwear products must be returned unworn and in their original condition. We will try to accommodate requests for exchanges or replacements. Unfortunately, we cannot guarantee that you will be able to exchange or replace any item.

Legal Details. For any reason, we may decline to grant your request for a Subscription. If we decline to grant your request for a Subscription, we may notify you at the email address you provided.

Acceptance. All Products will be deemed accepted by you upon shipment, and title to and risk of loss passes to you when we provide the Product(s) to a common carrier.

Cancellations. To cancel a subscription, you must provide notice at least fourteen (14) days before your next shipment is due to ship by visiting your Account Page and cancelling any active Subscriptions. You are responsible for the Subscription Fee (as defined below) for any Subscription that is not cancelled with the required notice. If you are on a prepaid Subscription Plan, you will be refunded your Subscription Fee less the full cost for any part of the Subscription you have already received.

PAYMENT

You may pay for your Subscription via credit card or other manner then available on the Site (“Subscription Fee”). If you have a referral credit, the referral credit will be credited to the Subscription Fee and the remaining balance, if any, may then be paid via credit card or other manner then available on the Site. By submitting your payment information to us, you authorize us to charge the applicable payment method at our convenience but within thirty (30) days of the purchase date unless we otherwise notify you. You represent that you will not use any credit card or other form of payment unless you have all necessary authorization to do so. We will not be liable in the event others acting with or without your permission use your credit card, PayPal account, or other means of payment to purchase a Subscription on the Site; however, you may report any unauthorized use to us, and we will use reasonable measures within our control to help prevent future unauthorized use of your card.

PRICING AND PRODUCTS

Underclub does not disclose the prices unless you request pricing information for Products you receive. While Underclub makes efforts to follow the style preferences you express in your Style Profile, we do not guarantee that every item in your Subscription will comply with those preferences. Please remember that you are responsible for paying the Subscription Fee whether the Products conform to your Style Profile or not, unless you request a return in accordance with Section 3. The manufacturer of each Product, and not Underclub, is solely responsible for the quality and all warranties, explicit and implied, of any of its Products shipped as part of your Subscription. If you have any problems with a Subscription, you should first contact Underclub by email at hello@underclub.co.

GIFT CARD SUBSCRIPTIONS

You may purchase Underclub gift card subscriptions through the Services (“Underclub Gifts”). Underclub Gifts can be redeemed for the Services made available through the Site. Underclub Gifts cannot be redeemed for cash or credit except where required by law. For balance information contact: hello@underclub.co. Underclub is not responsible for lost or stolen Underclub Gifts. Risk of loss and title for Underclub Gifts pass to the purchaser upon electronic transmission to the recipient. For avoidance of doubt, recipient may not always be you. Underclub reserves the right to close accounts and request alternative forms of payment if an Underclub Gift is fraudulently obtained or used on the Service.

OWNERSHIP OF INTELLECTUAL PROPERTY

You understand and acknowledge that the software, code, proprietary methods and systems used to provide the Site or Services (“Our Technology”) and the materials, information and content made available or displayed by us on the Site or through the Services (collectively, “Our Content”) are: (a) copyrighted by us or our licensors under United States and international copyright laws; (b) subject to other intellectual property and proprietary rights and laws; and (c) owned by us or our licensors. Neither Our Content nor Our Technology may be copied, modified, reproduced, republished, posted, transmitted, sold, offered for sale, or redistributed in any way without our prior written permission and the prior written permission of our applicable licensors. You must abide by all copyright notices, information, or restrictions contained in or attached to any of Our Content or Our Technology and you may not remove or alter any such notice, information or restriction. Nothing in these Terms of Use grants you any right to receive delivery of a copy of Our Technology or to obtain access to Our Technology except as generally and ordinarily permitted through the Site or Services according to these Terms of Use. Furthermore, nothing in these Terms of Use will be deemed to grant, by implication, estoppel or otherwise, a license to Our Technology or Our Content. Certain of the names, logos, and other materials displayed on Products, the Site, or in the Services constitute trademarks, tradenames, service marks or logos (“Marks”) of Underclub or other entities. Ownership of all such Marks and the goodwill associated with such Marks remains with us or those other entities. You are not authorized to copy, modify, create derivative works of, or otherwise use Our Content and any Marks from Our Content or Our Technology. Any use of third party software provided in connection with the Site or Services will be governed by such third parties’ licenses and not by these Terms of Use.

User conduct and CONTENT GUIDELINES

It is our goal to make access to our Site and Services a good experience for all of our users. You agree not to, and represent and warrant that you will not use, reproduce, duplicate, copy, sell, resell, or exploit any portion of the Site or Services, your use of the Site or Services, or access to the Site or Services for any purposes other than for which the Site or Services are being provided to you. Please use good taste in any and all content you post to our Site, comments to our blog, or on any other page or website related to Underclub, including text, links, images and videos, other than Underclub content (“Your Content”). We reserve the right, but do not undertake an obligation, to restrict your access to the Site and/or Services or remove any of Your Content from the Site if you do not meet the guidelines below.

Do:

Remember you're in public — the information you post in public areas including our blog or any other page or website related to Underclub can be seen by anyone on the Internet.

Respect others' opinions — if necessary, agree to disagree.

Behave ethically.

Use good judgment — stay in good taste, including in any comments.

A word about language: Vulgar language or crude sexual references are not appropriate.

Don't:

Infringe any third party's copyright, patent, trademark, trade secret, or other proprietary rights or rights of publicity or privacy

Harass, verbally attack, or threaten others.

Pretend to be someone you are not or claim false credentials.

Pretend to make any claims, representations or warranties on behalf of any third party or Underclub.

Post or link to content that is obscene, discriminatory, defamatory, harmful, threatening, or racially, ethnically, religiously, sexually, or otherwise offensive.

Use a review, a post, or a group as an opportunity to vent, disparage, or flame a clothing brand, person, organization or entity.

Express negative opinions without supporting facts.

Post or link directly to any content with vulgarities directed towards another person, organization, or entity.

Attempt to reverse engineer or jeopardize the correct functioning of the Site, or otherwise attempt to derive the source code of the software (including the tools, methods, processes, and infrastructure) that enables or underlies the Site;

Attempt to gain access to secured portions of the Site or Services to which you do not possess access rights;

Upload or transmit any form of virus, worm, Trojan horse, or other malicious code;

Use the Site or Services to generate unsolicited email advertisements or spam;

Use any high volume automatic, electronic, or manual process to access, search or harvest information from the Site or Services (including without limitation robots, spiders, or scripts);

Interfere in any way with the proper functioning of the Site and Services or interfere with or disrupt any servers or networks connected to the Site or Services, or disobey any requirements, procedures, policies, or regulations of networks connected to the Site or Services;

Mirror or frame the Site or any of Our Content, place pop-up windows over its pages, or otherwise affect the display of its pages.

Underclub reserves the right, in its discretion, to suspend your Account, your use of the Services or the Subscription at any time at our discretion including, as necessary to protect the security or operation of the Site or Services.

FEEDBACK

In the event that you provide us any ideas, thoughts, criticisms, suggested improvements, or other feedback related to Products, the Site, or the Services (collectively “Feedback”), you agree we may use the Feedback to: (a) modify our Site and Services or any Products and (b) promote the Site, Services, and Products, and that you will not be due any compensation for your Feedback that is used in these ways. To the extent that we have your name, likeness, or voice, this will be part of the Feedback and you agree that we may use your name, likeness, and voice in the same manner that we can use other Feedback. You grant to us a worldwide, royalty-free, fully paid, perpetual, irrevocable license to use, reproduce, modify, translate, distribute, perform, display, import, sell, offer for sale, make, have made and otherwise exploit the Feedback in any form, media, or technology, whether now known or hereafter developed, and to allow others to do the same. This is true whether you provide the Feedback on the Site or through any other method of communication with us, unless we have entered into a separate agreement with you that provides otherwise.

MODIFICATIONS TO THE SITE OR SERVICES

We reserve the right to modify or discontinue the Site or Services (including Subscriptions) with or without notice to you. We will not be liable to you or any third party should we exercise our right to modify or discontinue the Site and/or Services. If you object to any such changes, your sole recourse will be to cease access to the Site or Services. Continued access to the Site or Services following notice of any such changes will indicate your acknowledgement of such changes and satisfaction with the Site or Services as so modified. You agree that we, in our sole discretion, may immediately terminate your access to the Site and Services at any time, for any reason, in our sole discretion. YOU AGREE THAT WE WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY TERMINATION OF YOUR ACCESS TO THE SITE OR SERVICES.

PRIVACY

We know that your privacy is important. For this reason, we have created a Privacy Policy that describes our collection, use, and disclosure practices regarding any personal information that you provide to us. Please visit our Privacy Policy to learn more about how we collect, use, and disclose the information that you provide to us or we otherwise learn about you through your use of the Services, including how we market our Services. The security of your personal information is important to us. While there is no such thing as "perfect security" on the Internet, we will take reasonable steps to help ensure the safety of your personal information. However, you understand and agree that such steps do not guarantee that the Site and the Services are invulnerable to security breaches or immune from viruses, security threats, or other vulnerabilities, and that you assume any and all risk of security breaches, viruses, or other events that result in your information being disclosed to third parties. Underclub reserves the right to cooperate with local, state, provincial, and national authorities in investigations of improper or unlawful activities and this may require the disclosure of your personal information. We may also report to other organizations about improper or unlawful user activities and this reporting may include disclosure of personal information relating to those individuals conducting such improper or unlawful activities.

THIRD PARTY CONTENT AND OTHER WEBSITES

Content from other users, suppliers, advertisers, and other third parties may be made available to you through the Site and/or the Services. Because we do not control such content, you agree that we are not responsible for any such content. We do not make any guarantees about the accuracy, currency, suitability, or quality of the information in such content, and we assume no responsibility for unintended, objectionable, inaccurate, misleading, or unlawful content made available by other users, advertisers, and other third parties or violation of any third party rights related to such content. The Site and Services may contain links to websites not operated by us, including the websites of the brands we include in Subscriptions. We are not responsible for the content, products, materials, or practices (including privacy practices) of such websites. You understand that by using the Site and/or Services you may be exposed to third party websites that you find offensive, indecent or otherwise objectionable. We make no warranty, representation, endorsement, or guarantee regarding, and accept no responsibility for, the quality, content, nature, or reliability of third party websites, products or services accessible by hyperlink or otherwise from the Site or Services. We provide these links for your convenience only and we do not control such websites. Our inclusion of links to such websites does not imply any endorsement of the materials on such third party websites or any association with their operators. The Site and Services may contain links to websites that are operated by us but which operate under different terms of use. It is your responsibility to review the privacy policies and terms of use of any other website you visit. YOU AGREE THAT IN NO EVENT WILL WE BE LIABLE TO YOU IN CONNECTION WITH ANY WEBSITES, CONTENT, PRODUCTS, MATERIALS, OR PRACTICES OF ANY THIRD PARTY.

DISCLAIMER OF WARRANTIES

THIS SITE AND ALL CONTENT, PRODUCTS, AND SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THIS SITE ARE PROVIDED BY UNDERCLUB “WITH ALL FAULTS ” AND ON AN "AS IS" AND "AS AVAILABLE" BASIS, UNLESS OTHERWISE SPECIFIED IN WRITING. UNDERCLUB MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AS TO THE OPERATION OF THIS SITE OR ANY CONTENT, PRODUCTS, OR SERVICES INCLUDED ON, OR OTHERWISE MADE AVAILABLE TO YOU THROUGH, THIS SITE, UNLESS OTHERWISE SPECIFIED IN WRITING, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, AND ACCURACY. YOU EXPRESSLY AGREE THAT YOUR USE OF THIS SITE, SERVICES, AND PRODUCTS PURCHASED THROUGH THE SERVICES IS AT YOUR SOLE RISK. We make no warranty that the Products, Site, or Services will meet your requirements, or that the Site and/or Services will be uninterrupted, timely, secure, or error free; nor do we make any warranty as to the results that may be obtained from the use of the Products, Site, or Services, or that defects in the Products, Site, or Services will be corrected. We specifically disclaim any liability associated with the use of the Products (e.g., rashes that may develop from wearing the Product or dyes that bleed from the Products onto other items) and you agree that you will not sue Underclub for any claim related to any Product purchased through the Site or the Services. You understand and agree that you will be solely responsible for any damage to your computer or loss of data that results from the download of any material and/or Our Content. No advice or information, whether oral or written, obtained by you from us through the Site, Services, or otherwise will create any warranty, representation or guarantee not expressly stated in these Terms of Use.

LIMITATION OF LIABILITY

YOU ACKNOWLEDGE AND AGREE THAT WE ARE ONLY WILLING TO COLLECT PAYMENT, FACILITATE THE FULFILLMENT OF SUBSCRIPTIONS, AND PROVIDE ACCESS TO THE SITE AND SERVICES IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND TO THIRD PARTIES. YOU UNDERSTAND THAT TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL WE OR OUR OFFICERS, EMPLOYEES, DIRECTORS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA, LOST OPPORTUNITIES, OR BUSINESS INTERRUPTIONS OR OTHER INTANGIBLE LOSSES (EVEN IF SUCH PARTIES WERE ADVISED OF, KNEW OF, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY), ARISING OUT OF OR RELATED TO YOUR USE OF OR ACCESS TO, OR THE INABILITY TO USE OR TO ACCESS, THE SITE OR THE SERVICES, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, STATUTE, OR OTHERWISE. WE WILL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM THE PRODUCTS OR FOR ANY INFORMATION APPEARING ON ANY OTHER SITE LINKED TO OUR SITE. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THIS SITE OR THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SITE AND THE SERVICES. OUR TOTAL LIABILITY TO YOU FOR ALL CLAIMS ARISING FROM OR RELATED TO THE SITE OR THE SERVICES IS LIMITED, IN AGGREGATE, TO THE GREATER OF (i) THE TOTAL AMOUNT YOU PAID FOR YOUR SUBSCRIPTION(S) IN THE THREE (3) MONTHS PRIOR TO THE DATE OF THE EVENT GIVING RISE TO OUR LIABILITY, AND (ii) TEN DOLLARS (U.S. $10.00). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES.

ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS AND DISCLAIMERS MAY NOT APPLY TO YOU. TO THE EXTENT THAT WE MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY IMPLIED WARRANTY OR LIMIT LIABILITIES, THE SCOPE AND DURATION OF SUCH WARRANTY AND THE EXTENT OF OUR LIABILITY WILL BE THE MINIMUM PERMITTED UNDER SUCH APPLICABLE LAW.

WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES WILL WE OR OUR LICENSORS BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ACTS OF NATURE, FORCES, OR CAUSES BEYOND OUR REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET FAILURES, COMPUTER EQUIPMENT FAILURES, TELECOMMUNICATION EQUIPMENT FAILURES, OTHER EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, STRIKES, LABOR DISPUTES, RIOTS, INSURRECTIONS, CIVIL DISTURBANCES, SHORTAGES OF LABOR OR MATERIALS, FIRES, FLOODS, STORMS, EXPLOSIONS, ACTS OF GOD, WAR, GOVERNMENTAL ACTIONS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS, OR NON-PERFORMANCE OF THIRD PARTIES.

Some states do not allow exclusion of implied warranties, so these exclusions may not apply in individual cases. You may have additional rights that vary from state to state. To the extent that we may not, as a matter of applicable law, disclaim any implied warranty, the scope and duration of such warranty will be the minimum permitted under such applicable law.

INDEMNIFICATION

You agree to indemnify, defend and hold harmless Underclub, our parents, subsidiaries, affiliates, officers, directors, co-branders, and other partners, employees, consultants, and agents, from and against any and all third party claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorneys' fees and court costs) that such parties may incur as a result of or arising from: (i) your use of the Products, Site, or Services (except to the extent prohibited by law); (ii) your violation of these Terms of Use; (iii) your violation of any rights of any other person or entity; (iv) any content, information or materials you upload to the Site or Services; or (v) any viruses, Trojan horses, worms, time bombs, spyware, malware, cancelbots, or other similar harmful or deleterious programming routines input by you into the Site or Services.

RELEASE

You hereby release Underclub, its officers, employees, agents and successors from claims, demands, any and all losses, damages, rights, claims, and actions of any kind including, without limitation, personal injuries, death, and property damage, that is either directly or indirectly related to or arises from (i) your use of the Site or Services; or (ii) your purchase of any Subscriptions or Product(s). You hereby waive California Civil Code Section 1542, which states: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor" and you waive any other similar provision of the laws of any other applicable jurisdiction.

COPYRIGHT INfringement; notice and take down procedures

Underclub specifically prohibits the posting of any content that violates or infringes the copyrights and/or other intellectual property rights (including rights of privacy and publicity) of any person or entity. If you believe that any material contained on this Site infringes your copyright or other intellectual property rights, you should notify us of your copyright infringement claim in accordance with the following procedure. Underclub will process notices of alleged infringement that it receives and will take appropriate action as required by the Digital Millennium Copyright Act (“DMCA”).

The DMCA requires that notification of claimed copyright infringement should be sent to our copyright agent at hello@underclub.co.

To be effective the notification must be in writing and contain the following information (DMCA, 17 U.S.C. § 512(c)(3)):

Physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;

Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;

Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material;

Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;

A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and

A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed

ELECTRONIC COMMUNICATIONS

We can only give you the benefits of our service by conducting business through the Internet, and therefore we need you to consent to our giving you Communications (as defined below) electronically. This Section 21 informs you of your rights when receiving Communications from us electronically. For contractual purposes, you (a) consent to receive communications from us in an electronic form; and (b) agree that all terms and conditions, agreements, notices, documents, disclosures, and other communications (“Communications”) that we provide to you electronically satisfy any legal requirement that such Communications would satisfy if it were in writing. Your consent to receive Communications and do business electronically, and our agreement to do so, apply to all of your interactions and transactions with us. The foregoing does not affect your non-waivable rights. You may also receive a copy of these Terms of Use by accessing this Site. You may withdraw your consent to receive Communications electronically by contacting us in the manner described below. If you withdraw your consent, from that time forward, you must stop using the Site and Services. The withdrawal of your consent will not affect the legal validity and enforceability of any obligations or any electronic Communications provided or business transacted between us prior to the time you withdraw your consent. Please keep us informed of any changes in your email or mailing address so that you continue to receive all Communications without interruption.

All controversies, disputes, demands, counts, claims, or causes of action between you and Underclub arising out of, under, or related to these Terms of Use or our privacy practices (including any action we take or authorize with respect to information about or provided by you) will be settled exclusively through binding arbitration.

ARBITRATION WILL BE SUBJECT TO THE FEDERAL ARBITRATION ACT AND NOT ANY STATE ARBITRATION LAW

The arbitration will be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by these Terms of Use, and unless agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”).

You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract EXCEPT for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.

You and Underclub must abide by the following rules: (a) for any claim that could otherwise be brought in small claims court, the arbitration will be conducted solely based on written submissions and, if the arbitrator deems it appropriate, a telephonic hearing; (b) if the claim exceeds what can be recovered in a small claims court, the arbitration will be conducted solely based on written submissions or a telephonic hearing, unless the arbitrator deems a face-to -face hearing is appropriate, in which case one should be held at a location agreed to by you and Underclub, and if the parties cannot agree on a location for the hearing, the arbitrator will determine a location for the proceedings which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances; (c) the arbitrator’s ruling is binding and not merely advisory; (d) ANY CLAIMS BROUGHT BY YOU OR UNDERCLUB MUST BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (e) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, (f) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, Underclub will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (g) Underclub also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (h) the arbitrator will honor claims of privilege and privacy recognized at law; (i) a decision by the arbitrator (including any finding of fact and/or conclusion of law) against either you or Underclub will be confidential unless otherwise required to be disclosed by law or by any administrative body and may not be collaterally used against either of them in existing or subsequent litigation or arbitration involving any other person/Underclub customer; and (j) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees’ and litigation expenses.

Notwithstanding the foregoing, either you or Underclub may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret will not be subject to this arbitration provision. Such claims will be exclusively brought (unless such courts do not have personal jurisdiction in the dispute) in the courts located in San Francisco, California. Additionally, notwithstanding this arbitration provision, either party may seek emergency equitable relief before such courts in order to maintain the status quo pending the arbitrator’s ruling, and hereby agree to submit to the personal jurisdiction of such courts. A request for interim measures will not be deemed a waiver of the right to arbitrate.

With the exception of subparts (d) and (e) in the paragraph above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision will remain in effect and will be construed in accordance with its terms as if the invalid, unenforceable, illegal, or conflicting provision were not contained herein. If, however, either subpart (d) or (e) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision will be null and void, and neither you nor Underclub will be entitled to arbitration. In the event this arbitration provision is held unenforceable by a court, or in the event AAA refuses to arbitrate the dispute, all controversies, disputes, demands, counts, claims, or causes of action between you and Underclub will be exclusively brought in the state or federal courts in San Francisco, California.

For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org..

GENERAL TERMS

These Terms of Use are personal to you, and you may not transfer, assign, or delegate your right and/or duties under these Terms of Use to anyone else and any attempted assignment or delegation is void. You acknowledge that we have the right hereunder to seek an injunction, if necessary, to stop or prevent a breach of your obligations hereunder. The paragraph headings in these Terms of Use, shown in boldface type, are included only to help make these Terms of Use easier to read and have no binding effect. Any delay or failure by us to exercise or enforce any right or provision of these Terms of Use will not constitute a waiver of such right or provision. No waiver by us will have effect unless such waiver is set forth in writing, signed by us; nor will any such waiver of any breach or default constitute a waiver of any subsequent breach or default. These Terms of Use constitute the complete and exclusive agreement between you and us with respect to the subject matter hereof, and supersedes all prior oral or written understandings, communications or agreements. If for any reason a court of competent jurisdiction finds any provision of these Terms of Use, or portion thereof, to be unenforceable, that provision of the Terms of Use will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of these Terms of Use will continue in full force and effect.

SURVIVAL

Sections 1 through 8, 10, and 12 through 23 will survive the expiration or termination of these Terms of Use for any reason.

NOTICE. We may give notice to you by email, a posting on the Site, or other reasonable means. You must give notice to us in writing via email to hello@underclub.coor as otherwise expressly provided. Please report any violations of these Terms of Use to hello@underclub.co.